Sivadasan v. Sub Regional Transport Officer, Uzhavoor, Kottayam District, and The Meenachil Co-Operative Agricultural and Rural Development Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** ## **WP(C).No. 7719 of 2019** ## **PETITIONER:** **SIVADASAN, AGED 53 YEARS, S/O.GOPALAN, PUTHENPURAYIL HOUSE, EZHACHERRY.P.O., PALA-686651.** **BY ADV. SRI.D.SREENATH** ## **RESPONDENTS:** |**1**|**SUB REGIONAL TRANSPORT OFFICER,**| |---|---| ||**UZHAVOOR, KOTTAYAM DIST., PIN-686634.**| |**2**|**THE MEENACHIL CO-OP.**| ||**AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.,**| ||**NO.K197, PALA, REPRESENTED BY ITS SECRETARY,**| ||**PIN-686575.**| ## **SRI MANU RAJ K.J,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 7719 of 2019 2 ## **JUDGMENT** The petitioner, who is the registered owner of a contract carriage bearing registration No.KL-35/E-1798 covered by Ext.P1 certificate of registration and Ext.P2 contract carriage permit, which was valid up to 12.09.2018, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to accept Ext.P4 application dated 25.02.2019, made for renewal of Ext.P2 contract carriage permit, with the requisite fee and documents for renewal of that permit and consider the same within a time limit to be fixed by this court. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to renew Ext.P2 contract carriage permit, without insisting 'No Objection Certificate' from the 2[nd] respondent financier. 2. On 14.03.2019, when this writ petition came for admission, the learned Government Pleader was directed WP(C).No. 7719 of 2019 3 to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the 1[st] respondent. 4. Considering the nature of reliefs proposed to be granted, service of notice on the 2[nd] respondent, which is stated to be the financier of the vehicle in question, is dispensed with. 5. **In Shabu Sukumaran v. Regional Transport Officer, TVM and others [2018(2) KHC 470],** after referring to the provisions under Section 51 of the Motor Vehicles Act, 1988, this Court has held that, as per subsection (8) of Section 51, while applying for renewal of permit or for issuance of duplicate certificate of registration or for assignment of a new registration mark, the registered owner shall submit the certificate, if any, obtained from the financier under sub-section (7) or, where no such certificate has been obtained, the communication received from the financier under that WP(C).No. 7719 of 2019 **==> picture [9 x 10] intentionally omitted <==** sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that subsection. In the said decision, this Court held further that, even in the case, in which financier has objected renewal of permit, registering authority has discretion to renew the permit, after affording the applicant an opportunity of being heard. In the said decision, this Court has also held that registering authority has to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to whether despite such objections of the financier, applicant is entitled for renewal of permit. Paragraphs 4 to 6 of the said decision reads thus: “4. Section 51 of the Motor Vehicles Act (hereinafter referred to as 'the Act' for short) deals with special provisions regarding motor vehicle subject to hire purchase agreement. Sub-section (6) of Section 51 provides that the registered owner shall, before applying to the appropriate authority, for the renewal of a permit under section 81 or for the issue of duplicate certificate WP(C).No. 7719 of 2019 5 of registration under sub-section (14) of Section 41, or for the assignment of a new registration mark under Section 47, or removal of the vehicle to another State, or at the time of conversion of the vehicle from one class to another, or for issue of no objection certificate under Section 48 or for change of residence or place of business under Section 49, or for the alteration of the vehicle under Section 52, make an application to the person with whom the registered owner has entered into the said agreement of hire purchase (such person being referred to as the financier) for the issue of a no objection certificate. Sub-section (7) of Section 51 provides that within seven days of the receipt of an application under subsection (6), the financier may issue, or refuse, for reason which shall be recorded in writing and communicated to the applicant, to issue, the certificate applied for, and where the financier failed to issue the certificate and also fails to communicate the reasons for refusal to issue the certificate to the applicant within the said period of seven days, the certificate applied for shall be deemed to have been issued by the financier. 5. Sub-section (8) of Section 51 provides that the registered owner shall, while applying to the appropriate authority for the renewal of any permit under Section 81, or for the issue of a duplicate certificate of registration, under sub-section (14) of Section 41, or while applying for assignment of a new registration mark under Section 47, submit with such application the WP(C).No. 7719 of 2019 6 certificate, if any, obtained under subsection (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that sub-section. As per Clause (a) of sub-section (9) of Section 51, on receipt of an application for the renewal of any permit or for the issue of duplicate certificate of registration or for assignment of a new registration mark in respect of a vehicle which is held under the said agreement, the appropriate authority may, subject to the other provisions of this Act, in a case where the financier has refused to issue the certificate applied for, after giving the applicant an opportunity of being heard, either renew or refuse to renew the permit or issue or refuse to issue the duplicate certificate of registration or assign or refuse to assign a new registration mark. 6. The provisions under sub-section (9) of Section 51 of the Act would make it explicitly clear that even in a case in which the financier has objected the renewal of permit, the registering authority has the discretion to renew the permit, after affording the applicant an opportunity of being heard. Therefore, merely for the reason that the financier has refused to issue the certificate applied for under sub-section (7) of Section 51, the registering authority cannot reject an application made for renewal of contract carriage permit, in a mechanical exercise of power. Since certain WP(C).No. 7719 of 2019 7 discretion has been vested with the registering authority, in view of the provisions under sub-section (9) of Section 51 of the Act, the registering authority has to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to whether despite such objections of the financier, the applicant is entitled for renewal of permit.” 6. The learned counsel for the petitioner would submit that seeking renewal of Ext.P2 contract carriage permit, the petitioner submitted Ext.P4 application for renewal, along with Ext.P5 declaration dated 23.02.2019, as contemplated under sub-section (8) of Section 51 of the Motor Vehicles Act. However, the 1[st] respondent has not accepted that application. 7. The learned Government Pleader, on instructions, would submit that the 1[st] respondent is yet to receive Ext.P4 application and that, if a proper application is received along with the required documents, after remitting the requisite fee, the said respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also to the 2[nd] WP(C).No. 7719 of 2019 8 respondent financier. 8. The learned counsel for the petitioner would submit that the petitioner shall re-submit Ext.P4 application for renewal of Ext.P2 contract carriage permit, along with Ext.P3 letter dated 12.02.2019 addressed to the 2[nd] respondent financier and Ext.P5 declaration under sub-section (8) of Section 51 of the Motor Vehicles Act and that, he shall also remit the requisite fee, within one week from the date of receipt of a certified copy of this judgment. 9. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) Within one week from the date of receipt of a certified copy of this judgment, the petitioner shall resubmit Ext.P4 application, along with Ext.P3 and P5, before the 1[st] respondent, after remitting the requisite fee. (ii) If Ext.P4 application made by the petitioner is in order and it is supported by the requisite documents and the petitioner has also remitted the requisite fee, the 1[st] respondent shall consider the same and pass WP(C).No. 7719 of 2019 9 appropriate orders, with notice to the petitioner and also to the 2[nd] respondent financier. (iii) A decision in this regard shall be taken as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment, taking note of the law laid down by this court in **Shabu Sukumaran's case (supra).** ## **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** DK WP(C).No. 7719 of 2019 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BEARING REGISTRATION NO.KL-35-E-1798. COPY OF THE REGISTRATION CERTIFICATE.** **EXHIBIT P2 A TRUE COPY OF THE PERMIT ISSUED BY THE SUB RTO, PALA.** **EXHIBIT P3 A TRUE COPY OF THE SAID APPLICATION FOR NOC SUBMITTED BEFORE THE 2ND RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF THE SAID APPLICATION PRODUCED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P5 A TRUE COPY OF THE DECLARATION UNDER SECTION 51(8) OF THE MV ACT.** **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN WP(C).NO.2428/2019.** **RESPONDENTS'S EXHIBITS: NIL** **//TRUE COPY//** ## **PA TO JUDGE** DK